Tuesday round-up

By Amy Howe
on Apr 19, 2016 at 6:27 am

Yesterday the Court heard oral arguments in United States v. Texas, the challenge to the Obama administration’s deferred-action policy for certain undocumented immigrants.  Molly Runkle rounded up early coverage of and commentary on the case for this blog.  I covered the case at my own blog, with other coverage coming from Mark Walsh, who provided a “view” from the Courtroom for this blog; Nina Totenberg of NPR (with an earlier story here); Daniel Fisher of Forbes, who reports that “it seemed likely the court will split 4-4, leaving a Fifth Circuit Court of Appeals decision upholding a federal judge’s injunction against the immigration policy intact”; and Steven Mazie in The Economist.

Commentary on the case comes from Slate’s Dahlia Lithwick, who concludes that “a 4-4 tie is not just in the cards but also highly likely”; Adam Feldman, who has an empirical analysis of the oral argument at (what else?) Empirical SCOTUS; Kevin Johnson, who at Immigration Prof Blog concludes that “the Obama administration may come out okay in United States v. Texas in the end”; and Lisa Soronen, who at the NCSL Blog notes that the case “is about different things for different people.”

Pre-argument coverage relating to the immigration case comes from Josh Gerstein at Politico and Lydia Wheeler and Mike Lillis of The Hill.  Pre-argument commentary comes from Richard Lugar in The New York Times, Garrett Epps in The Atlantic, and Anil Kalhan at Dorf on Law (with a shorter essay in Washington Monthly).

Coverage related to the death of Justice Antonin Scalia and the nomination of Chief Judge Merrick Garland to succeed him comes from Jessica Gresko of the Associated Press, who looks at the influence of the Oklahoma City bombing on Garland’s life and career; and William Douglas of McClatchyDC, who surveys scholarly opinion on whether the Senate can decline even to consider Garland’s nomination.  And in The New York Times, Adam Liptak looks at recent comments by Senator Charles Grassley critical of Chief Justice John Roberts.

Yesterday the Court issued its decision in Welch v. United States, holding that its decision in an earlier case applies retroactively to cases on collateral review.  Steve Vladeck identifies what he describes as a “subtle but serious flaw” in the decision at PrawfsBlawg.  And in Supreme Court Brief (subscription required), Tony Mauro interviews Helgi Walker, the Washington attorney appointed to argue as an amicus in the case.

Coverage of the Court’s denial of review in Authors Guild v. Google, the challenge to Google’s book-copying program, comes from Daniel Fisher of Forbes, who reports that the order “rejects arguments by the Authors Guild and associations representing game developers, journalists and others that the sheer scale of Google’s book-scanning program — since 2004, more than 20 million books have been made available online — violates their exclusive right to profit from their works.”  Commentary comes from Jeff John Roberts, who in Fortune characterizes the challenge as a “fruitless quest to thrust a legal harpoon into Google over the company’s decision to scan more than 20 million library books.”

Today the Court will hear oral arguments in United States v. Bryant, involving the use of uncounseled tribal court convictions for purposes of meeting a federal domestic-violence statute’s predicate-offense requirement.  I previewed the case for this blog, with other coverage coming from law students Tyler Vandeventer and Jason Ottomano of Cornell’s Legal Information Institute.  The second argument is in the False Claims Act case Universal Health Services v. Escobar, which Ronald Mann previewed for this blog; other coverage comes from law students Ben Rosales and Thomas Kim of Cornell’s Legal Information Institute, and commentary comes from Justin Shur and Sarah Newman at Corporate Counsel.

Briefly:

• In an essay for The Wall Street Journal, David Oshinsky urges the Court to grant review in the case of Texas death-row inmate Duane Buck, arguing that denying him “a chance” at a new hearing “would be a mistake” because of “the inflammatory content” of the testimony against him “and the distressing racial history of capital punishment.”
• At Hamilton and Griffin on Rights, Leslie Shoebotham looks ahead to tomorrow’s oral arguments in a challenge by three drivers to state laws that impose criminal penalties for refusal to take a chemical test to measure blood alcohol concentrations.  She describes the case “as a ‘gumbo-type’ case, where it seems that a little of everything has been thrown into the Fourth Amendment pot.”
• At Knowledge Center, Lisa Soronen looks at the potential impact of Pena-Rodriguez v. Colorado, in which the Court agreed to weigh in on whether evidence of racial bias can be offered to prove a violation of the Sixth Amendment right to an impartial jury, for state and local governments.
• In The National Law Journal (subscription or registration my be require), Ilya Shapiro and Thomas Berry look back at the Court’s opinion in Evenwel v. Abbott, holding that states and local governments may use total population to draw legislative districts; they contend that “six justices reached this conclusion in part by relying on a misreading of the Federalist Papers and a misunderstanding of the different interests at play in federal and state apportionment rules.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.